Voting Rights on the Docket

Ohio A. Philip Randolph Institute (APRI) et al. v. Husted

Status:

Case Dates:

Wednesday, 6 April, 2016 - Monday, 11 June, 2018

Facts:

As part of its annual voter roll maintenance process required by the National Voter Registration Act, the Ohio Secretary of State was cancelling the registrations of voters who voted infrequently. Specifically this purge protocol, the “Supplemental Process,” targeted voters who did not vote in two consecutive federal elections, and sent them a notice asking them to inform the Secretary of State that they had not changed address since they last voted. If a voter did not respond and did not engage in voter activity for the subsequent four years, the voter’s registration would be cancelled with no further notice. Voters purged as a result of this process often did not see or understand the notice, and did not realize they had been purged. They learned of their purged status only when they came to the polls to vote in a subsequent election and were informed that they were not registered. At this point, they were forced to vote provisionally—a vote that does not count when the voter is not registered.

This annual purge resulted in the cancellation of hundreds of thousands of eligible voters who voted infrequently. The ACLU of Ohio and co-counsel Demos, a progressive public policy organization that focuses extensively on voting rights, brought suit to halt the Supplemental Process and to restore the voter registrations of those unlawfully purged on behalf of three plaintiffs: two organizations that work to register voters, the A. Philip Randolph Institute and the Northeast Ohio Coalition for the Homeless, and one individual who had been illegally purged, Larry Harmon.

Legal Theory:

The Secretary of State violated the National Voter Registration Act (NVRA) when he purged voters based on their failure to vote. The NVRA permits registration cancellation based only on a voter’s change of address, death, or other enumerated reasons that do not include failure to vote. In fact, the NVRA explicitly prohibits voter purging based on the failure to vote.

Status:

On December 17, 2015, we sent a pre-litigation notice letter on behalf of the Ohio A. Philip Randolph Institute, a civil rights-labor organization, to Ohio Secretary of State Jon Husted. In the letter, we urged the state to stop its unconstitutional practice of removing voters from its registration rolls for non-voting.

On January 21, 2016, we met with officials from the Secretary of State’s office and the Constitutional Section of the Attorney General’s office to discuss the concerns raised in our letter and began attempts to reach an agreement. As part of an attempt by Secretary Husted to address the issues that we raised, Husted issued a press release on February 1, 2016 encouraging voters to confirm and update their registration status prior to the close of registration on February 16, 2016, “particularly if a voter has not voted in a long time, changed their name or changed their residence.” In addition to the A. Philip Randolph Institute, NEOCH (The Northeast Ohio Coalition of the Homeless) joined as a client/plaintiff, and we filed a Notice Letter on its behalf.

On April 6, 2016, the ACLU and Demos filed a Complaint in the U.S. District Court for the Southern District of Ohio, followed by a Motion for a Temporary Restraining Order and Preliminary Injunction. The Motion asked the Court to require Secretary Husted to stop the annual purge process and to restore all unlawfully purged voters to the voting rolls. Judge George C. Smith was assigned to the case. Mediation was attempted, but failed. The Complaint was amended to add individual plaintiff Larry Harmon.

On June 29, 2016, after expedited discovery and briefing, Judge Smith ruled in favor of Defendant Husted. The ACLU and Demos appealed and moved for an expedited schedule before the Sixth Circuit. The Court granted our motion to expedite, and we filed our opening brief for Plaintiffs/Appellants on July 13, the Secretary filed his response on July 20, and we replied on July 22. The United States Department of Justice filed an amicus brief in support of our position as did the League of Women Voters, and Project Vote Judicial Watch filed an amicus brief in support of the State.

On July 26, 2016, the Sixth Circuit heard oral arguments in the case. On September 23 the Court ruled that the Supplemental Process violated the NVRA, reversing the decision of the district court. The Court’s opinion adopted our interpretation of the NVRA’s prohibition on removing voters for failure to vote, and held that the Supplemental Process unlawfully used failure to vote to trigger a process that ultimately resulted in voters’ removal from the rolls. However the Sixth Circuit did not issue a remedy, instead remanding the case to the lower court to do so.

On October 13, 2016, the Secretary filed a motion to implement his proposed remedy. We filed an emergency motion for a temporary restraining order, asking the Court to ensure that Ohio voters who were unlawfully purged would be able to have their votes counted in the November 2016 election if they appeared in person to vote or voted by mail.

On October 17, the U.S. Department of Justice filed a second amicus brief in our favor, arguing that the Secretary’s proposed remedy did not fully correct the NVRA violation found by the Sixth Circuit. The Ohio Democratic Party also filed an amicus brief, arguing that all voters purged by the supplemental process should be reinstated.

On October 19, the Court ordered favorable relief as to the November 8 election. It ordered the Secretary of State to count the provisional ballots of voters who were unlawfully purged in 2011 or later, as long as the voter was otherwise eligible to vote and had not moved to a different county. The Court also ordered the Secretary to send a notification by mail to any purged voter who requested an absentee ballot, explaining that the voter could vote in person by provisional ballot and that their vote might count.

We subsequently negotiated further relief with the Secretary for two subsets of voters who had not been covered by the Court’s order: ill or disabled voters and military and overseas voters who had been unlawfully purged, but who needed to vote by mail. On October 25, 2016, the Court issued an order requiring county boards of elections to hand-deliver provisional ballots to unlawfully purged voters who had personal illnesses, physical disabilities, or infirmities. On November 5, 2016, the Court ordered that overseas and military voters who had been unlawfully purged must be able to vote provisionally by mail.

Following the election, on November 21, 2016, the district judge granted a third joint motion to extend the relief to a December 6 special election.

On January 6, 2017, the District Court set dates for discovery and briefing in the permanent remedy stage of the litigation. We agreed to multiple protective orders limiting our distribution of documents that we obtained from Defendant or third parties during discovery.

On February 6, 2017, after having a received an extension of time, the Secretary of State’s office filed a petition for writ of certiorari in the U.S. Supreme Court. After applying for and receiving an extension of time, we filed our response to the petition on March 31. Judicial Watch, Inc., the state of Georgia and 14 other states, the Landmark Legal Foundation, and a group of former Justice Department attorneys filed amicus briefs supporting the Secretary of State’s petition for certiorari. On April 17, the Secretary of State filed a reply to our opposition to his petition for certiorari.

As agreed, discovery continued while the Defendant sought review by the Supreme Court. On March 15, we received Defendant’s expert report. On April 14, we served our expert rebuttal to that report.

On April 18, the parties submitted a joint proposed order to the district judge extending the temporary relief granted last November to the May 2 Special Primary election.

The Secretary deposed our expert witness on May 4, and we deposed his on May 12. On May 22, both parties filed motions to exclude each other’s expert’s report.

On May 30, the U.S. Supreme Court granted the Secretary’s petition for writ of certiorari, meaning it will hear the Secretary’s appeal. We filed a joint motion to stay the district court proceedings, which Judge Smith granted. The parties agreed that the Secretary will not employ the Supplemental Process to purge voters prior to the Supreme Court’s decision, and that the temporary relief in effect for the November 2016 election will remain in place until the Supreme Court renders its ruling.

The Secretary filed his merit brief on July 31, 2017, and amicus briefs in support – including one by the U.S. Department of Justice – were filed on August 7. We filed our merits brief on September 15, 2017. Amicus briefs in support of our position were filed on September 22. The Secretary filed his reply brief on October 16. Oral arguments were scheduled to take place on November 8, 2017, but after our co-counsel who was slated to argue the case had to take an unexpected medical leave, we requested they be moved. Oral arguments took place on January 10, 2018. Paul Smith of the Election Law Center argued on behalf of Plaintiff-Appellees. The State of Ohio shared its time with the Solicitor General, who appeared on behalf of the United States Department of Justice in support of Ohio.

On June 11 the Supreme Court reversed the Sixth Circuit ruling, holding that Ohio’s Supplemental Process is permissible under the NVRA’s Failure-to-Vote clause.

On June 22, 2018, Defendant filed a Motion to Lift Stay and Vacate Orders Related to Interim Remedies in the District Court, and on June 28 it was granted.

On July 11 the District Court held a status conference regarding the proper remedy for the registrants who were purged pursuant to Ohio’s form of confirmation notice, which did not meet with the requirements of the NVRA. On July 27 the Court held a settlement conference to resolve this remaining claim. The parties did not reach a full settlement, but entered an interim agreement that extended the APRI Exception to the then-upcoming August 7 special election. Accordingly, on July 31 we filed a Joint Stipulation and Order extending the APRI Exception to the August 7 special election.

After further mediated negotiations, we could not reach an agreement providing continuing relief for voters who were purged pursuant to defective notices. Therefore, the parties are litigating as to the proper final remedy. On August 24, the Court set a briefing schedule. Our Motion for Final Judgment was filed September 14, Defendant’s response September 28, and our reply October 8. On October 10 the Court denied our Motion. On October 11 we filed a Notice of Appeal to the Sixth Circuit Court of Appeals along with a Motion for Injunction Pending Appeal in the District Court. On October 12 the District Court denied our Motion.

On October 15 we filed an Emergency Motion for Injunction Pending Appeal in the Sixth Circuit, requesting that the Circuit Court order Husted to implement the APRI exception during the November 2018 election and halt the removal of any voter who was sent a confirmation notice under the Supplemental Process prior to August 2016. We also requested that Husted be ordered to respond by October 17. On October 16 the Sixth Circuit ordered Husted to respond by noon on Friday October 19, which he did. We filed a Reply that afternoon. Amici Judicial Watch and Public Interest Legal Foundation filed briefs in support of the position of the Secretary of State.